There are two disputed sections of the bill, as Charlie Savage explains. One “would require the government to place into military custody any suspected member of Al Qaeda or one of its allies connected to a plot against the United States or its allies. The provision would exempt American citizens, but would otherwise extend to arrests on United States soil. The executive branch could issue a waiver and keep such a prisoner in the civilian system.” The second provision “would create a federal statute saying the government has the legal authority to keep people suspected of terrorism in military custody, indefinitely and without trial. It contains no exception for American citizens.”

So forget the presumption of innocence. Forget the protections of the Constitution. If you are suspected of terrorism, you may be held indefinitely, maybe even shipped off to Guantanamo. And in this war that will last forever and play out on every square inch of the planet, the chances that these new powers will ever be rolled back are negligible. Even long after the war on terror has waned.

These additions to the National Defense Authorization Act were co-sponsored by Michigan Senator Carl Levin(D) (202) 224-6221 and Arizona Senator John McCain(R) (202) 224-2235. McCain was last seen being honorable sometime in the early 1980s so no surprise there. Levin’s actions are a little shocking, he is generally a defender of civil liberties. I’m not even sure why all the paranoia that requires non-citizens charged with terrorism be seized without trail or due process, the Bush administration used civilian courts to put away dozens of terrorists, including “shoe bomber” Richard Reid; al-Qaeda agent Jose Padilla; “American Taliban” John Walker Lindh; the Lackawanna Six; and Zacarias Moussaoui. Law fare tries to be a non-partisan law blog and even the lawyers find the provisions in sections 1031 and 1032 contradictory and confusing – Does the NDAA Authorize Detention of US Citizens?

In any event, against this backdrop, section 1031 as currently written–and if examined in isolation–would not alter the somewhat uncertain status quo regarding the availability of detention for citizens. But 1031 does not stand in isolation. Consider section 1032.

[ ]….This obviously rules out the idea of a mandatory military detention for US citizens. But note that it tends to rule in the idea that the baseline grant of detention authority in 1031 does in fact extend to citizens. Otherwise there would be no need for an exclusion for citizens in section 1032, since the 1032 category is a subset of the larger 1031 category.

One of the things about the law is how exacting much of the language is when it gets down to specific provisions. If lawyers find the reading of 1031 and 1032 contains an ambiguous gap you can be sure a U.S. citizen or legal resident will be caught up in that ambiguity. Senator Al Franken is one of the most progressive Senators in the Senate and said on addressing the Senate about the NDAA,

” [W]hat we are talking about here is that Americans could be subjected to life imprisonment. Think about that for a minute. Life imprisonment. Without ever being charged, tried, or convicted of a crime. Without ever having an opportunity to prove your innocence to a judge or a jury of your peers. And without the government ever having to prove your guilt beyond a reasonable doubt. I think that denigrates the very foundations of this country.” (emphasis mine)

Even before the U.S. Constitution was written the concept of habeas corpus was becoming one of the pillars of a democratic republic.Obviously many observers have also mentioned how these provisions would violate the Posse Comitatus Act, which puts restrictions on how the military may be used by government for law enforcement. The Senate has passed this bill. The only thing that stands between it becoming law is President Obama’s promise to veto.

As Adam Serwer explains: This new legislation will “overturn a precedent that was followed almost without exception by the Bush administration: Domestic terrorism arrests are the province of law enforcement, not the military.” Raha Wala of Human Rights First notes that “authorizing the military to detain terror suspects apprehended within the United States clearly goes against the spirit of the Posse Comitatus Act, a law that has prevented the military from taking on domestic law enforcement functions since the Civil War.” If you think the blurring of domestic policing and military authority is an Orwellian fantasy, you may want to consider the treatment of Occupy Wall Street protestors in recent weeks, or Mayor Michael Bloomberg’s claim that “I have my own army in the NYPD, which is the seventh biggest army in the world.”

We don’t bring the battlefield into our backyard for any number of obvious reasons, and redefining our backyard as the battlefield for all time doesn’t make any of us safer or more free. As Sen. Mark Udall, who proposed the amendment removing these provisions from the bill, wrote Monday in the Washington Post: “These proposed changes would require the military to take on a new responsibility as police, jailors and judges—jobs for which it is not equipped and which it does not want. These changes to our laws would also authorize the military to exercise unprecedented power on U.S. soil.”

As nightfall does not come all at once, neither does oppression. In both instances, there is a twilight when everything remains seemingly unchanged. And it is in such twilight that we all must be most aware of change in the air – however slight – lest we become unwitting victims of the darkness. – Justice William O. Douglas

update: Apparently that was just so much lip service from Senator Franken who voted to pass the bill along with the majority of the Senate according to Open Congress’s vote tally.

That the conservative majority of the Roberts Court are champions of free speech is a trope that simply refuses to die. The New York Times summed up the Court’s most recent term by describing free speech as a “signature project” of Chief Justice Roberts, and numerous commentators have chimed in, contributing to the common misperception that the Roberts Court is “the most free speech Court in American history.” Efforts to debunk this myth, by Erwin Chemerinsky, David Cole, and Nadine Strossen, among others, have seemingly failed to make much of a dent in the popular wisdom.

[ ]…In its first five years, from 2006 until 2011, the Roberts Court granted certiorari in 27 cases in which a free speech violation was claimed (including the speech, press, assembly, and association guarantees). In these cases, the Court held that a free speech violation existed in nine of the cases, and that no free speech violation had been demonstrated in 18 of these cases. Thus, simply looking at the numbers, the Roberts Court has supported a free speech claim in 33.33 percent of argued cases. By way of comparison, as Lee Epstein and Jeffrey A. Segal have shown, from 1953 to 2004, the Supreme Court supported claims of deprivation of First Amendment liberties in 53.95 percent of argued cases. Thus, at the most basic quantitative level, the Roberts Court seems to be not especially protective of free speech rights.

Qualitatively the Robert’s court has an even lower rank in protecting free speech, unless you’re a large corporation or a political organization with conservative leanings. In those cases the Robert’s court has declared – most famously in Citizens United v. Federal Election Commission that corporations, or more specifically special interests with lots of money to spend on affecting the outcome of elections, have more free speech than an individual citizen. In the U.S. money has officially become free speech under the Robert’s court and its conservative majority. Let’s say you have strong feelings about animal rights. If the issue should come up as part of a candidates platform or a state referendum, can you gather up the millions of dollars to buy TV, radio and print ads to counter the ads put out by anti-animal rights interests. The same applies to issues such as reproductive rights or blowing the tops off mountains to mine coal or any other issue. It is not even the case that special interests buy public support for issues based on facts. Just as in the history of political advertisements, corporate backed groups like the far Right American Crossroads have shown no reservations about telling the most blatant lies. It is a sad quirk of the public that even some generally reasonable people will start to believe a lie might be true, if they hear it enough.